Volume 63, Issue 5 - May 2011

The Objects of the Constitution

The Constitution empowers and restricts different officials differently. A constitutional claim is a claim that a particular government actor has exceeded a grant of power or transgressed a restriction. But because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Current practice speaks, euphemistically, of challenges to “statutes,” thus obscuring the subjects of constitutional claims. But the Constitution does not prohibit statutes; it prohibits actions—the actions of particular government actors. Thus, every constitutional inquiry should begin with the subject of the constitutional claim. And the first question in any such inquiry should be the who question: who has allegedly violated the Constitution?

This Article’s predecessor, The Subjects of the Constitution, demonstrated the analytical power of this seemingly innocuous question. To begin with, the who question reveals constitutional culprits, triggering the essential backstops of constitutional accountability. If the Constitution has been violated, the People must know who has violated it, so that they can know whom to blame, whom to vote against, whom to impeach.

This Article picks up where its predecessor left off. The predecessor established the primacy of the who question; this Article shows how to answer it. Part I begins with the intellectual primogenitor of this approach: Chief Justice Marshall’s masterful opinion for the Court in Barron v. Baltimore. It then presses beyond Barron, using Marshall’s method to address the questions that he left unanswered. Part II analyzes several of the passive-voice clauses of the Bill of Rights, in the first systematic effort to identify their implied objects. As it turns out, these objects form a pattern, which amounts to a central, structural theme of the Bill of Rights that has long been overlooked. Part III turns to Section 1 of the Fourteenth Amendment. Its key sentence, unlike the bulk of the Bill of Rights, is written in the active voice, with an explicit subject (“State”), but the who question is nevertheless quite subtle, because the sentence does not specify the relevant branch of state government. This Part shows how the answer informs the incorporation debate. It builds on Akhil Amar’s insight that the Bill of Rights underwent “refinement” when incorporated against the states by the Fourteenth Amendment, and it identifies perhaps the most important refinement of all: refinement of the actors bound by the Bill—refinement of its objects.

In short, this Article and its predecessor amount to a new model of constitutional review, a new lens through which to read the Constitution. This approach begins with a grammatical exercise: identifying the subjects and objects of the Constitution. But this is hardly linguistic casuistry or grammatical fetishism. The subjects and objects of the Constitution are not merely features of constitutional text; they are the very pillars of constitutional structure. The very words “federalism” and “separation of powers” are simply shorthand for the deep truth that the Constitution empowers and restricts different governmental actors in different ways. Indeed, this is the primary strategy that the Constitu-tion deploys to constrain governmental power; more than any other principle of institutional design, the Framers pinned their hopes on the axiom that ambition may counteract ambition. And so, in allocating each governmental power—and in “giv[ing] to each [branch] a constitutional control over the others”—the first question was, inevitably, who? To elide the who question is to overlook the central feature of our constitutional structure. And it is this structure, above all, that is the object of the Constitution.